Amicus Curiae Brief — Ross William Ulbricht, Petitioner v. United States
Supreme Court briefFeb 5, 2018
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No. 17-950
IN THE
Supreme Court of the United States
ROSS WILLIAM ULBRICHT, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________________
BRIEF OF NATIONAL LAWYERS GUILD,
AMERICAN CONSERVATIVE UNION FOUNDATION CENTER FOR CRIMINAL JUSTICE
REFORM, FREEDOMWORKS, HUMAN
RIGHTS DEFENSE CENTER, NANCY
GERTNER, NATIONAL COALITION TO
PROTECT CIVIL FREEDOMS, PARTNERSHIP FOR CIVIL JUSTICE FUND, AND PEOPLE’S LAW OFFICE AS AMICI CURIAE IN
SUPPORT OF PETITIONER
Prof. Zachary Wolfe
The George Washington
University
2100 Foxhall Rd, NW
Ames Hall 218
Washington, DC 20007
zwolfe@gwu.edu
(202) 242-5130
Heidi Boghosian
Counsel of Record
A.J. MUSTE MEMORIAL
INSTITUTE, INC.
168 Canal Street, 6th Fl
New York, NY 10013
heidiboghosian@gmail.com
(917) 239-4999
LEGAL PRINTERS LLC, Washington DC ! 202-747-2400 ! legalprinters.com
i
QUESTIONS PRESENTED
1. Whether the warrantless seizure of an individual’s
Internet traffic information without probable
cause violates the Fourth Amendment.
2. Whether the Sixth Amendment permits judges to
find the facts necessary to support an otherwise
unreasonable sentence.
ii
TABLE OF CONTENTS
Questions Presented ................................................... i
Table of Authorities .................................................. iv
Statement of Interest ..................................................1
Summary of Argument ...............................................1
Argument.....................................................................2
I. This Court should resolve the question
of the privacy interest in online activity ........2
A. Online activity has extraordinary
social importance and requires
constitutional protection .............................5
II. To ensure that judges do not unfairly
punish a defendant in violation of
the Sixth Amendment to the U.S.
Constitution, sentences must be
based on facts proven at trial...........................7
A. Jurors’ historic role as a check against
unbridled judicial power has
diminished, to the detriment
of the rule of law .......................................11
B. Sentencing must be limited to facts
admitted by the defendant or supported
by jury findings .........................................14
iii
C. Judicial fact-finding in this context is
particularly troublesome and
certiorari presents an appropriate
vehicle to address this issue .....................16
1. Confusion and fear, related to
misunderstood technology,
and highly prejudicial murdersfor-hire and drug-related fatalities,
impermissibly tainted sentencing .......16
2. Constitutionally irrelevant victim
impact statements factored into
sentencing bias ....................................18
D. Judicial expressions of hostility to
petitioner’s ideology undermines
first amendment values and public
perception of fairness ................................20
E. Fact-finding should be entrusted
to juries, not judges ...................................21
Conclusion .................................................................24
Appendix .................................................................. A-1
iv
TABLE OF AUTHORITIES
Cases
Abrams v. United States,
250 U.S. 616 (1919) ..........................................5
ACLU v. Reno,
521 U.S. 844 (1997) ..........................................5
Apprendi v. New Jersey,
530 U.S. 466 (2000) ..........................................7
Balzac v. Porto Rico,
258 U.S. 298 (1922) ........................................13
Blakely v. Washington,
542 U.S. 296 (2004) ..................................14, 15
Board of Education v. Pico,
457 U.S. 853 (1982) ..........................................5
Booth v. Maryland,
482 U.S. 496 (1987) ........................................18
Carpenter v. United States,
137 S. Ct. 2211 (2017) ......................................3
Duncan v. Louisiana,
391 U.S. 145 (1968) ........................................21
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ........................................22
Riley v. California,
134 S. Ct. 2473 (2014) ..............................2, 3, 6
Rita v. United States,
551 U.S. 338 (2007) ........................................15
Smith v. Maryland,
442 U.S. 735 (1979) ..........................................4
Stanley v. Georgia,
394 U.S. 557 (1969) ..........................................5
Texas v. Johnson,
491 U.S. 397 (1989) ........................................21
United States v. Davis,
785 F.3d 498 (11th Cir. 2015) ......................4, 7
v
Cases continued
United States v. Jones,
565 U.S. 400 (2012) ..........................................4
United States v. Ulbricht,
858 F.3d 71 (2d Cir. 2017) ......................3, 6, 19
United States v. Booker,
543 U.S. 220 (2005) ........................................11
Zant v. Stephens,
462 U.S. 862 (1983) ........................................18
Statutes
The Federal Sentencing Guidelines
18 U.S. Code § 3553 ....................................8, 13
Communications Decency Act
47 U.S.C. § 230 .................................................5
Constitutional Provisions
U.S. Const. Amend. IV ...................................... passim
U.S. Const. Amend. VI ...................................... passim
Other Authorities
1 J. Bishop,
Criminal Procedure § 87,
(2d ed. 1872) ...................................................15
2 John Adams's Works (1771) ..................................12
12 Angry Men (Orion-Nova 1957) .............................23
Akhil R. Amar,
The Bill of Rights: Creation &
Reconstruction 83 (1998)................................11
Alexis De Tocqueville,
Democracy in America,
(The Century Co. 1898, 1st ed.) .....................22
vi
Other Authorities Continued
Andy Greenberg,
The Silk Road Creator’s Life Sentence
Actually Boosted Dark Web Drug Sales,
(May 23, 2017, 10:00AM) .................................9
Ashley Nellis,
Still Life America’s Increasing
Use of Life and Long Term
Sentences, The Sentencing Project,
May 3, 2017 ......................................................8
Bryan Denson,
Global meth dealer from Vancouver
gets lighter sentence because of U.S.
agents' 'Silk Road' corruption,
The Oregonian/OregonLive
(Nov. 5, 2015, 3:15PM),
http://www.oregonlive.com/pacificnorthwest-news/index.ssf/2015/11/global_silk_road_
meth_dealer_f.html) .........................................9
Bryan Myers and Edith Greene,
The Prejudicial Nature of
Victim Impact Statements:
Implications for Capital
Sentencing Policy, 10 Psych. Pub.
Pol. & L. 492 (2004) ........................................18
Christine Scott-Hayward et al.,
Does Privacy Require Secrecy?
Societal Expectations of Privacy
in the Digital Age,
43 Am. J. Crim. L. 19 (2015) ........................2, 4
Editorial, The Right to Receive Ideas,
Wash. Post, Apr. 12, 1969 ................................5
vii
Other Authorities Continued
Federal Bureau of Prisons,
Find An Inmate,
https://www.bop.gov/inmateloc/,
(last visited Jan. 27, 2018) .............................10
George P. Shultz and Pedro Aspedec,
The Failed War on Drugs,
New York Times, Op Ed,
Dec. 31, 2017 ...................................................21
Harry Kalven, Jr. and Hans Zeisel,
The American Jury, 499 (1966)......................23
Human Rights Watch,
With Liberty to Monitor All:
How Large-Scale US
Surveillance is Harming
Journalism, Law, and
American Democracy, July 28, 2014 ................6
Jason Meisner,
Biggest dealer on underground
Silk Road given 10 years in prison,
Chicago Tribune, May 29, 2015 .......................8
Jed Rubenfeld,
The End of Privacy,
61 Stan. L. Rev. 101 (2008) ..............................6
Law Enforcement Struggles to Police
“Dark Web,” IACPCybercenter.com,
http://www.iacpcybercenter.org/
news/law-enforcement-strugglespolice-dark-web/ (last visited
Jan. 27, 2018) .................................................17
viii
Other Authorities Continued
Lee Matthews,
What Is Tor, And Why You
Should Use It To Protect
Your Privacy, Forbes.com
(Jan. 27, 2017, 2:30PM),
https://www.forbes.com/sites/leemathews/2017/01/27/what-is-tor-andwhy-do-people-use-it/#1d2614b7d752............17
Life Without Parole: America's New
Death Penalty? edited by
Charles J. Ogletree, Jr.,
Austin Sarat (2012) ..........................................8
Levi Pulkkinen,
Bellevue programmer gave up
$180k salary to deal drugs on
Silk Road, SeattlePI.com
(March 19, 2015, 12:38PM),
http://www.seattlepi.com/seattlenews/
article/Bellevue-programmer-gave-up180k-salary-to-deal-6144142.php) ...................8
Marvin E. Frankel,
Criminal Sentences: Law Without Order
New York: Hill and Wang, 1972 ....................13
Nate Raymond,
An alleged staff member of Silk Road 2.0
was sentenced to 8 years in prison,
BusinessInsider.com (Jun. 4, 2016,
4:42AM), http://www.businessinsider.com/
r-key-player-in-silk-road-successor-site-getseight-years-in-us-prison-2016-6)......................9
ix
Other Authorities Continued
Nate Raymond,
Silk Road member Peter Nash avoids
further US prison time,
The Sydney Morning Herald,
May 27, 2015 ....................................................8
Nicola Gennaioli and Andrei Shleifer,
Judicial Fact Discretion,
37 J. Legal Stud. 1 (2008) ..............................10
Nila Bala,
Judicial Fact-Finding in the
Wake of Alleyne, 39 N.Y.U. Rev. L.
& Soc. Change 1 (2015) ..................................11
Oral Argument,
U.S. v. Ulbricht, 858 F.3d 71
(2d Cir. 2016), available at
http://www.ca2.uscourts.gov/
decisions/isysquery/7fc49c36-9780-412b9fa0-2310e6e29d90/181-190/list/ ...................19
Paul F. Kirgis,
Sentencing Facts After Booker,
39 Ga. L. Rev. 895 (2005) .........................10, 12
Paul F. Kirgis,
The Right to a Jury Decision on
Sentencing Facts after Booker:
What the Seventh Amendment
Can Teach the Sixth,
39 Ga. L. Rev.897 (2005)
available at http://scholarship.law.
umt.edu/faculty_lawreviews/131 ...................15
x
Other Authorities Continued
Phillip Rogaway,
The Moral Character of Cryptographic
Work (Dec. 2015) Department of
Computer Science, University of California,
Davis, (2015 IACR Distinguished
Lecture), http://web.cs.ucdavis.edu/
~rogaway/papers/moral-fn.pdf .......................17
Press Release, U.S. Attorney's Office
Southern District of New York,
Operator of Silk Road 2.0 Website
Charged in Manhattan Federal
Court, Nov. 6, 2014
(available at https://www.fbi.gov/
contact-us/field-offices/newyork/news/pressreleases/operator-of-silk-road-2.0-websitecharged-in-manhattan-federal-court) ..............9
Reginald Rose,
Twelve Angry Men, Act III, 44-45 (1955) ......24
Robin Steinberg,
Heeding Gideon's Call in
the Twenty-First Century:
Holistic Defense and the
New Public Defense Paradigm,
70 Wash. & Lee L. Rev. 961 (2013) ................13
Roger Roots,
The Rise and Fall of the American Jury,
8 Seton Hall Cir. Rev. 1 (2011) ......................11
Stephanos Bibas,
Judicial Fact-Finding at Sentencing,
Faculty Scholarship,
U. Penn. Law School, 2008 ............................14
xi
Other Authorities Continued
Valerie P. Hans,
Deliberation and Dissent:
12 Angry Men Versus the Empirical
Reality of Juries, (2007),
Cornell Law Faculty Publications,
Paper 307 ........................................................23
1
STATEMENT OF INTEREST 1
Amici are organizations and a former judge committed to defending the constitutional protections afforded by both the Fourth and Sixth Amendments and
include the National Lawyers Guild, American Conservative Union Foundation Center for Criminal Justice Reform, Freedom Project, Judge Nancy Gertner
(Ret.), the Human Rights Defense Center, National
Coalition to Protect Civil Freedoms, the Partnership
for Civil Justice Fund, People’s Law Office. Many of
these organizations have appeared previously as amicus curiae before this Court. Their individual organizational statements are contained in the Appendix
following this brief.
SUMMARY OF ARGUMENT
This Court should accept certiorari because of the important concerns related to privacy and judicial factfinding in a context that suggests bias and hostility to
constitutionally protected viewpoints.
First, this case squarely presents the question of privacy interests in Internet browsing history. Whether
or not the government may obtain this information
without a showing of probable cause is a question of
tremendous importance for individual freedom and
political activity.
1 Rule 37 Statement: All parties received timely notice of amici’s
intent to file this brief and consented to its filing. No counsel for
any party authored any portion of this brief, and amici alone
funded its preparation and submission.
2
Second, this case raises important questions of what
factors may be legitimately considered by judges at
the sentencing phase. Petitioner’s sentence was based
on judicial fact-finding that the defendant commissioned murders, even though he was never charged
with any form of homicide or planning homicide and
there were no relevant jury findings. The judge also
expressed hostility to Petitioner’s philosophy and political views. This Court should not permit punishment based on lower burdens of proof for any crime,
much less one as serious as murder-for-hire, and
should clarify that punishments may not be enhanced
because of ideology.
ARGUMENT
I. THIS COURT SHOULD RESOLVE THE
QUESTION OF THE PRIVACY INTEREST IN
ONLINE ACTIVITY
This society is grappling with the question of what
privacy protections should attend modern communications in a free society. “[B]oth empirical research
and public opinion polls suggest that the public has
higher expectations of privacy than those recognized
by the courts in most Fourth Amendment jurisprudence.” Christine Scott-Hayward et al., Does Privacy
Require Secrecy? Societal Expectations of Privacy in
the Digital Age, 43 Am. J. Crim. L. 19, 49 (2015).
This Court has taken notice, providing important
guidance by revising decades-old principles in light of
new technology, Riley v. California, 134 S. Ct. 2473
(2014) (warrantless search incident to arrest may not
include search of digital information on the arrested
person’s cell phone), and confronting further
3
questions of when modern technology fundamentally
changes the nature of an intrusion into one that is unreasonable, Carpenter v. United States, 137 S. Ct.
2211 (2017) (granting cert. to resolve whether the
warrantless seizure and search of historical cell
phone records revealing the location and movements
of a cell phone user over the course of 127 days is permitted by the Fourth Amendment).
In working through these questions, this Court would
benefit from considering a fuller array of the types of
intrusions made possible when the third-party doctrine, as developed in Smith v. Maryland, 442 U.S.
735 (1979), is applied to types of activity that could
not have been envisioned by courts in decades past.
The court below held that government collection of information regarding the specific IP addresses that a
person visits is “precisely analogous to the capture of
telephone numbers at issue in Smith.” United States
v. Ulbricht, 858 F.3d 71, 97 (2d Cir. 2017) (citing
Smith v. Maryland, 442 U.S. 735 (1979)). But this is
far from self-evident and has been a subject of debate
and concern at this Court, in lower courts, and among
the general public.
In this Court, Riley, 134 S. Ct. at 2490, specified that
one reason a warrant was required for searches of mobile telephones, even in a search incident to arrest,
was because “[a]n Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private
interests or concerns.” This echoes prior concerns and
still-open questions about the extent of legal protection for Internet activity that, to many, appears
4
extremely private. See, e.g., United States v. Jones,
565 U.S. 400, 417-18 (2012) (Sotomayor, J., concurring) (reasoning that simple application of the thirdparty doctrine “is ill suited to the digital age, in which
people reveal a great deal of information about themselves to third parties” such as “the URLs that they
visit” and observing that “I for one doubt that people
would accept without complaint the warrantless disclosure to the government of a list of every Web site
they had visited in the last week, or month, or year”).
The Eleventh Circuit’s concern and internal disagreement in United States v. Davis, 785 F.3d 498 (11th
Cir. 2015), regarding the applicability of Smith to web
browsing history is instructive. In dissent, Chief
Judge Martin was concerned that “blunt application
of the third-party doctrine threatens to allow the government access to a staggering amount of information
that surely must be protected under the Fourth
Amendment” including, specifically, “what websites
you access.” Id. at 535-36 (Martin, C.J., dissenting).
The majority acknowledged these concerns, but held
that it could not respond to them absent instruction
from this Court. Id. at 521 (“[a]s judges of an inferior
court, we have no business in anticipating future decisions of the Supreme Court. If the third-party doctrine results in an unacceptable ‘slippery slope,’ the
Supreme Court can tell us as much”).
Notably, studies reveal that actual expectations of
privacy in Internet histories are quite high. ScottHayward, supra at 54 (public opinion studies revealed
that “the expectation of privacy for Internet information was very high. Approximately 85% of respondents felt that law enforcement should never have
5
access or at least require a level commensurate with
probable cause to obtain information about online
search, purchase, website visitation histories”).
Accordingly, this case presents an opportunity for the
Court to address a type of modern activity—web
browsing—that has weighed heavily in recent thinking about privacy concerns but has not been resolved.
Moreover, as discussed below, the ability to access the
Internet without being monitored by the government,
absent probable cause, is essential to a modern free
society.
A. Online activity has extraordinary social
importance and requires constitutional
protection.
In addition to Fourth Amendment concerns, a free
and open Internet is essential to the marketplace of
ideas, Abrams v. United States, 250 U.S. 616, 630
(1919) (Holmes, J., dissenting), and the government’s
and lower court’s notion that there are no privacy interests to be protected in web browsing history has
alarming First Amendment implications. Although
the right to receive information is typically discussed
in the context of censorship, see, e.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“right to receive information and ideas”); Editorial, The Right to Receive
Ideas, Wash. Post, Apr. 12, 1969; Board of Education
v. Pico, 457 U.S. 853 (1982); ACLU v. Reno, 521 U.S.
844, 874 (1997) (holding that the Communications
Decency Act “effectively suppresses a large amount of
speech that adults have a constitutional right to receive”), it is a principle of which this Court should be
mindful when evaluating the importance of privacy
6
rights in Internet histories. “We are all familiar with
the thought that democracy requires a flourishing
‘public life.’ Less familiar, but equally essential, is the
idea that a self-governing people requires a flourishing personal life.” Jed Rubenfeld, The End of Privacy,
61 Stan. L. Rev. 101, 128 (2008); see also Human
Rights Watch, With Liberty to Monitor All: How
Large-Scale US Surveillance is Harming Journalism,
Law, and American Democracy, July 28, 2014.
It will be self-evident to many that what can be determined from examining only Internet histories is profoundly “private” information. As discussed above, examinations of online activity have been highlighted as
the type of intrusion into private matters that is of
concern when other types of government searches are
being considered by this and lower courts. Amici believe that the Court will find that the same interests
implicated in searches of a mobile phone also require
a warrant based on probable cause before the government may monitor an individual’s web history. Riley,
134 S. Ct. at 2493 (reflexively relying on “pre-digital
analogue[s]” risks “a significant diminution of privacy”).
However, the court below mechanically applied
nearly forty-year-old precedent, believing that cases
considering pen traps of the telephone number dialed
was akin to government knowledge of what websites
a person visits. Ulbricht, 858 F.3d at 97. Something
as socially, politically, and personally important as
website browsing history requires updated consideration of privacy rights by this Court before the government is given license to search it without probable
cause.
7
By granting cert. in this case, the Court would benefit
from full and precise briefing on this specific issue and
could clarify important rights for the public as well as
provide much-needed guidance for the lower courts.
See Davis, 785 F.3d at 521, 537.
II. TO ENSURE THAT JUDGES DO NOT UNFAIRLY PUNISH A DEFENDANT IN VIOLATION OF THE SIXTH AMENDMENT TO THE
U.S. CONSTITUTION, SENTENCES MUST
BE BASED ON FACTS PROVEN AT TRIAL
Judges, when poised to render sentencing, should not
engage in fact-finding. This Court held in Apprendi v.
New Jersey that the Sixth Amendment right to a jury
trial—a “constitutional protection[] of surpassing importance”— prohibits judges from enhancing criminal
sentences beyond statutory maximums based on facts
other than those decided by the jury beyond a reasonable doubt or fact of prior conviction. Apprendi v. New
Jersey, 530 U.S. 466, 476 (2000). Antipathy to entrusting the government with sentencing has existed
since the nation’s founding, preferring the “unanimous vote of 12 of [their] fellow citizens.” Id. at 498
(Scalia, J., concurring).
The extraordinary harshness of the sentence in this
case, based on especially problematic judicial factfinding, calls for careful scrutiny. Thirty-one-yearold Ross William Ulbricht, a first-time offender, received a much harsher sentence than prosecutors
sought based not on charges presented to the jury, but
rather on judicially-found “facts”—namely that he ordered several murders-for-hire. C.A. App. 1464-1466.
Although Mr. Ulbricht’s case was not death-penalty
8
eligible, his sanction of life without possibility of parole, also referred to as “death-in-prison,” is close on
the punishment spectrum, and is “severe and degrading, arbitrarily imposed, and ha[s] been condemned
by members of the international community.” Life
Without Parole: America's New Death Penalty? edited by Charles J. Ogletree, Jr., Austin Sarat at 66-67
(2012). 2
It is worth noting that other Silk Road-related defendants received significantly lighter sentences, ranging
from ten years to 16 days, in disregard of the sentencing consideration to avoid unwarranted sentencing
disparities among defendants with similar records
who have been found guilty of similar conduct. 3 18
U.S. Code Sec. 3553.
2 It is likely that this nation’s framers could not have antici-
pated the vast expansion of a life-sentenced prison population. More than 200,000 persons—one out of every seven individuals incarcerated in the United States—are serving life
or “virtual life” sentences (named for the proposition that
they will realistically never be released), Ashley Nellis, Still
Life America’s Increasing Use of Life and Long Term Sentences, The Sentencing Project, May 3, 2017, available at
https://www.sentencingproject.org/publications/still-lifeamericas-increasing-use-life-long-term-sentences/.
3 Peter Nash, Silk Road moderator, received a sentence of 17
months. See Nate Raymond, Silk Road member Peter Nash
avoids further US prison time, The Sydney Morning Herald, May
27, 2015. Jan Slomp, “biggest” Silk Road drug dealer, received
a sentence of 10 years. See Jason Meisner, Biggest dealer on underground Silk Road given 10 years in prison, Chicago Tribune,
May 29, 2015. Steven Sadler, “top” Silk Road drug dealer, received a sentence of 5 years. See Levi Pulkkinen, Bellevue programmer gave up $180k salary to deal drugs on Silk Road,
9
The case of Blake Benthall, alleged owner and operator of Silk Road 2.0—one of many dark net markets
that proliferated after Ulbricht’s sentencing 4—illustrates the gross disparity. In its press release after
Benthall’s arrest on November 5, 2014, the FBI noted:
Silk Road 2.0 was virtually identical to the
original Silk Road website in the way it appeared and functioned. In particular, like
its predecessor, Silk Road 2.0 operated exclusively on the “Tor” network and required
all transactions to be paid for in Bitcoins in
order to preserve its users’ anonymity and
evade detection by law enforcement.
Press Release, U.S. Attorney's Office Southern District of New York, Operator of Silk Road 2.0 Website
Charged in Manhattan Federal Court, Nov. 6, 2014
SeattlePI.com (March 19, 2015, 12:38PM), http://www.seattlepi.com/seattlenews/article/Bellevue-programmer-gave-up180k-salary-to-deal-6144142.php). Jason Hagen, Silk Road
“global meth dealer,” received a sentence of 3 years. See Bryan
Denson, Global meth dealer from Vancouver gets lighter sentence
because of U.S. agents' 'Silk Road' corruption, The Oregonian/OregonLive (Nov. 5, 2015, 3:15PM), http://www.oregonlive.com/pacific-northwest-news/index.ssf/2015/11/global_silk_road_meth_dealer_f.html).
Brian
Farrell, “key assistant” to Silk Road 2.0’s owner/operator Blake
Benthall, received a sentence of 8 years. See Nate Raymond, An
alleged staff member of Silk Road 2.0 was sentenced to 8 years in
prison, BusinessInsider.com (Jun. 4, 2016, 4:42AM),
http://www.businessinsider.com/r-key-player-in-silk-road-successor-site-gets-eight-years-in-us-prison-2016-6).
4Andy Greenberg, The Silk Road Creator’s Life Sentence Actually Boosted Dark Web Drug Sales, (May 23, 2017, 10:00AM),
https://www.wired.com/2017/05/silk-road-creators-life-sentenceactually-boosted-dark-web-drug-sales/.
10
(available at https://www.fbi.gov/contact-us/field-offices/newyork/news/press-releases/operator-of-silkroad-2.0-website-charged-in-manhattan-federalcourt).
U.S. Attorney Preet Bharara also acknowledged Benthall was running “a nearly identical criminal enterprise” to Silk Road. Id. Yet, Benthall spent a mere 16
days in prison while Petitioner is serving a life sentence. Federal Bureau of Prisons, Find An Inmate
[Blake Benthall, Register No. 20045-111, released
Nov. 21, 2014], https://www.bop.gov/inmateloc/, (last
visited Jan. 27, 2018).
While judicial fact-finding was historically initiated
to afford judges a vehicle for lowering sentences, it
has evolved to do the opposite. Paul F. Kirgis, Sentencing Facts After Booker, 39 Ga. L. Rev. 895 (2005).
It also taints the criminal justice process as a whole
in that “fact discretion not only creates leeway for the
expression of judicial biases, it also undermines the
appeals process and adversarial litigation. Although
these mechanisms are sometimes believed to put a
beneficial check on trial courts, under fact discretion
they lose their effectiveness.” Nicola Gennaioli and
Andrei Shleifer, Judicial Fact Discretion, 37 J. Legal
Stud. 1, 4 (2008).
It is not problematic that the judge considered background information beyond the conviction, but it is of
concern that new, uncharged offenses were brought
up at sentencing and informed the ultimate sentence,
in violation of the Sixth Amendment. “The challenge
arises in line-drawing to permit suitable judicial discretion while cabining the ability of judges to punish
11
uncharged and acquitted conduct.” Nila Bala, Judicial Fact-Finding in the Wake of Alleyne, 39 N.Y.U.
Rev. L. & Soc. Change 1 (2015). The Sixth Amendment jury right provides that an individual should not
be punished for an uncharged offense because that
person has been convicted of another crime. United
States v. Booker interprets the Sixth Amendment as
requiring that any fact used to impose a sentence
longer than the longest sentence be supported by the
jury finding or guilty plea must be proved to a jury or
admitted by the defendant. 543 U.S. 220, 133 (2005).
A. Jurors’ historic role as a check against
unbridled judicial power has diminished,
to the detriment of the rule of law.
This case makes evident how the American jury’s
role—as “populist protector” and a check against tyranny—has become but a "shadow of its former self,"
with sentencing practices vesting increasing power in
judges despite the constitutional mandate that the
jury be central to reaching a judgment. Akhil R.
Amar, The Bill of Rights: Creation & Reconstruction
83 (1998).
This nation’s Framers and Founders feared the vagaries of judicial discretion. Roger Roots, The Rise
and Fall of the American Jury, 8 Seton Hall Cir. Rev.
1, 3 (2011). They were explicit that trial by jury was
necessary to thwart and obstruct judges, not merely
prosecutors with weak cases. Elbridge Gerry insisted
that jury trials were necessary to guard against corrupt judges. Id. Alexander Hamilton echoed this concern when he wrote, “The strongest argument in [trial
by jury's] favour is, that it is a security against
12
corruption.” Id. John Adams said that it was a juror's
duty to “find the verdict according to his own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” 2 John
Adams's Works, 254, 255 (1771).
This Court has long reaffirmed the Founders’ contention that juries’ role is paramount to the execution of
justice: "The jury system postulates a conscious duty
of participation in the machinery of justice.... One of
its greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part
of the judicial system of the country can prevent its
arbitrary use or abuse." Balzac v. Porto Rico, 258 U.S.
298, 310 (1922).
In the late 20th century, criminal sentencing changed
in two significant ways that diminished juries’ power:
(1) New statutory schemes provided for different penalties for a single crime depending on the existence of
aggravating circumstances, and (2) judges were afforded discretion to set sentences within board penalty ranges (indeterminate sentencing). Paul F. Kirgis, Sentencing Facts After Booker, 39 Ga. L. Rev. 895
(2005).
“With respect to the second type of innovation, courts
and commentators seem to have failed to recognize
the potential for incursion into the jury’s traditional
bailiwick.” That can be attributed to the fact that
these reforms were designed to reduce, not increase,
sentences, making them flexible so that offenders
could be released when rehabilitated. Id. at 909.
13
With the introduction of the Sentencing Guidelines in
1986, and statutory sentencing schemes in many
states, the issue that had until then been latent—judicial fact-finding in sentencing—rose to the fore.
The guidelines were designed to minimize judicial discretion—thought to be too lenient—and amounted to
a retribution model replacing the former rehabilitation model of punishment. Judicial fact-finding no
longer worked in favor of the defendant. In early
cases, challenging judicial fact-finding under the
Guidelines and state counterparts, this Court did not
signal that it would find any constitutional problems
with the new sentencing framework.
While there have been efforts to reform sentencing
practices over the past four decades, this Court should
consider the instant case in light of the values informing this nation’s founding. Judge Marvin Frankel persuasively explicated modern considerations that augment reasons the founders might have been concerned with judicial fact-finding: factors such as class,
education, and race influence judges. He wrote: “The
almost wholly unchecked and sweeping powers we
give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law.” Marvin E. Frankel, Criminal
Sentences: Law Without Order. New York: Hill and
Wang, 1972.
The right to have a sentence based on proven facts remains a central concern today, and this case presents
an opportunity for the Court to clarify the limits of
judicial fact-finding at sentencing. See gen’ly, Robin
Steinberg, Heeding Gideon's Call in the Twenty-First
14
Century: Holistic Defense and the New Public Defense
Paradigm, 70 Wash. & Lee L. Rev. 961, 963 (2013).
B. Sentencing must be limited to facts admitted by the defendant or supported by jury
findings.
Significantly for the instant case, this Court precluded judges from enhancing criminal sentences
based on facts other than those decided by the jury or
admitted by the defendant in part out of a concern
that “[w]hen a judge inflicts punishment that the
jury’s verdict alone does not allow, the jury has not
found all the facts ‘which the law makes essential to
the punishment,’ and the judge exceeds his proper authority.” Blakely v. Washington, 542 U.S. 296, 303
(2004), quoting 1 J. Bishop, Criminal Procedure § 87,
p 55 (2d ed. 1872); see also Stephanos Bibas, Judicial
Fact-Finding at Sentencing, Faculty Scholarship, U.
Penn. Law School, 252, 2008).
It is instructive to recall Justice Scalia’s words regarding Mr. Blakely’s enhanced sentence and the
stakes involved:
The Framers would not have thought it too
much to demand that, before depriving a
man of three more years of his liberty, the
State should suffer the modest inconvenience of submitting its accusation to the
unanimous suffrage of twelve of his equals
and neighbours, rather than a lone employee of the State.
15
Blakely, slip op. at 313 (internal quotation marks and
citation omitted).
As our system has implicitly recognized for
centuries, juries are simply the best actors
to decide fact questions. Fact questions involved speculative judgments about unknown events. In order to allow the parties
and the legal system to put disputes behind
them, adjudication must result in final determinations about the matters contested
by the parties. Only the jury, with its veiled,
democratic decision-making structure, has
the societal imprimatur to render acceptable final decisions on matters that are inherently unknowable.
Paul F. Kirgis, The Right to a Jury Decision on Sentencing Facts after Booker: What the Seventh Amendment Can Teach the Sixth, 39 Ga. L. Rev.897, 905
(2005).
The district court judge in this case failed to set forth
a reasoned basis for considering several alleged drugrelated deaths as relevant facts to be considered in
determining Mr. Ulbricht’s sentence. See Rita v.
United States, 551 U.S. 338, 356 (2007). Judge Forrest
based her sentence on unestablished facts that Mr.
Ulbricht’s actions “somehow related to” alleged drug
overdose fatalities. C.A. App. 1472-1480. This was despite a report by Board-certified forensic pathologist
defense expert, Mark L. Taff, M.D., that found insufficient information to attribute any of the deaths to
drugs purchased from Silk Road vendors. C.A. App.
904. The government did not rebut Dr. Taff’s report,
16
and nothing in the jury verdict resolved this contested
fact.
C. Judicial fact-finding in this context is particularly troublesome and certiorari presents an appropriate vehicle to address
this issue.
1. Confusion and fear, related to misunderstood technology, and highly prejudicial
murders-for-hire and drug-related fatalities, impermissibly tainted sentencing
The sentence was based on judicial findings related to
allegations of serious crimes that not only were never
found by a jury but were not even among the charges
leveled at trial. During closing argument, the U.S. attorney explicitly advised the jury: “[T]o be clear, the
defendant has not been charged for these attempted
murders here. You’re not required to make any findings about them. And the government does not contend that those murders actually occurred.” Trial Tr.
2159:25-2160:3, Feb. 3, 2015.
Thus, these “found” murders-for-hire and other
harms are best understood as anxious imaginings of
the darker intentions that “must” lurk behind the
commonly misunderstood Silk Road technologies,
namely anonymizing software, crypto-currency, and
the so-called Dark Web. Despite widespread and
growing use of Tor and Bitcoin, United States law enforcement’s framing of surveillance and cryptography
shapes how the mainstream sees it. Privacy and national security are depicted as being in conflict, with
emerging communications technology an asset to
17
privacy and a setback to security. Encryption is portrayed as especially threatening because law enforcement techniques have not kept apace. “It is a brilliant
discourse of fear: fear of crime; fear of losing our parents' protection; even fear of the dark.” Phillip
Rogaway, The Moral Character of Cryptographic
Work (Dec. 2015) Department of Computer Science,
University of California, Davis, essay written to accompany an invited talk (the 2015 IACR Distinguished Lecture) given at Asiacrypt 2015 on December 2, 2015, in Auckland, New Zealand,
http://web.cs.ucdavis.edu/~rogaway/papers/moralfn.pdf (last visited Jan. 25, 2018).
It is tempting to believe the sweeping generalizations
that the Dark Web is solely a terrain of lawlessness,
with Bitcoin and Tor serving as criminals’ saddle and
spurs. Law Enforcement Struggles to Police “Dark
Web,” IACPCybercenter.com, http://www.iacpcybercenter.org/news/law-enforcement-struggles-policedark-web/ (last visited Jan. 27, 2018). Two years after
the trial, these three areas remain widely misunderstood, and shrouded in mystery and sensationalism,
despite the fact that many legitimate users abound:
journalists, dissidents, and the military. Lee Matthews, What Is Tor, And Why You Should Use It To
Protect Your Privacy, Forbes.com (Jan. 27, 2017,
2:30PM),
https://www.forbes.com/sites-/leemathews/2017/01/27/what-is-tor-and-why-do-peopleuse-it/#1d2614b7d752.
18
2. Constitutionally irrelevant victim impact
statements factored into sentencing bias
Such misunderstandings or confusion about technology were augmented by impact witness statements at
sentencing by parents of alleged Silk Road consumers
who suffered fatalities. C.A. App. 1472-1496. Victim
impact testimony may be prejudicial in that it diverts
attention away from the facts that must be scrutinized, such as the circumstances surrounding the
crime and the defendant’s background and character.
Bryan Myers and Edith Greene, The Prejudicial Nature of Victim Impact Statements: Implications for
Capital Sentencing Policy, 10 Psych. Pub. Pol. & L.
492 (2004).
Victim impact testimony creates “the risk that
a…sentence will be based on considerations that are
‘constitutionally impermissible or totally irrelevant to
the sentencing process” by focusing on the character
of the victim and his or her experience, rather than
that of the offender. Booth v. Maryland, 482 U.S. 496,
502 (1987) (citing Zant v. Stephens, 462 U.S. 862, 885
(1983)).
This Court has noted that it would be difficult—if not
impossible—to provide a fair opportunity to rebut
such evidence without shifting the focus of the sentencing hearing away from the defendant.” Id. at 506.
The information may be so emotion-laden that jurors
and judges become more persuaded by how they feel
about the testimony than by the relevant case facts.
There are few more emotionally-charged and compelling witnesses than grieving parents. And no testimony is more prejudicial and irrelevant. Moreover,
19
the testimony in this instance concerns events for
which Mr. Ulbricht was not found criminally culpable.
Even the appellate court panel found certain testimony related to uncharged crimes inappropriate,
with Judge Gerald Lynch concerned that testimony
from parents of alleged Silk Road customers who died
“put an extraordinary thumb on the scale that shouldn't be there…. Does this [testimony] create an enormous emotional overload for something that's effectively present in every heroin case?” Lynch asked.
“Why does this guy get a life sentence?” He went on to
call the sentence “quite a leap.” Oral Argument at
27:00-29:18, U.S. v. Ulbricht, 858 F.3d 71 (2d Cir.
2016), available at http://www.ca2.uscourts.gov/decisions/isysquery/7fc49c36-9780-412b-9fa02310e6e29d90/181-190/list/.
Judge Forrest also pointed to evidence not charged at
trial that “Dread Pirate Roberts,” or “DPR,” paid to
have several persons murdered. Not one murder was
carried out, nor was Ulbricht charged in connection
with the alleged plots. Yet at the sentencing hearing
the trial judge asserted, “I find there is ample and unambiguous evidence that [Ulbricht] commissioned...murders to protect his commercial enterprise." C.A. App. 1464-1465.
In sum, a lack of understanding of the technology-related issues, coupled with uncharged crimes of murder-for-hire and emotion-laden witness impact testimony from grieving family members, were used at
sentencing to turn Petitioner into a composite of everything we have to fear about the Dark Web. Failure
to allow explanations of cryptocurrency, the Dark
20
Web, and Tor virtually ensured that the judge’s own
biases would go unchecked.
D. Judicial Expressions Of Hostility To Petitioner’s Ideology Undermines First
Amendment Values And Public Perception Of Fairness.
The fact that Mr. Ulbricht at one time opposed United
States drug laws is not relevant to his sentence, although it appeared to weigh heavily in the judge’s
thinking during sentencing. The Court should accept
cert. in this case to clarify that sentences based on judicial dislike of ideology cannot be tolerated.
The defendant’s ideological speech was related to a
five-decades-old government “war on drugs in the
United States [that] has been a failure that has ruined lives, filled prisons and cost a fortune.” George P.
Shultz and Pedro Aspedec, The Failed War on Drugs,
New York Times, Op Ed, Dec. 31, 2017.
When discussing Mr. Ulbricht’s character, the trial
court voiced disapproval of his political and philosophical views. Alluding to anonymous comments on
the Silk Road site, the judge said, “[T]here are posts
that discuss the laws as the oppressor and that each
transaction is a victory over the oppressor. This is
deeply troubling and terribly misguided and also very
dangerous.” A 1516. Before pronouncing Mr. Ulbricht’s sentence, the district court also expressed
concern that “the reasons that you started Silk Road
were philosophical and I don't know that it is a philosophy left behind.” A 1534.
21
The First Amendment guarantees expression of opinions on matters of public concern free from the fear of
legal punishment based on the viewpoint expressed.
The First Amendment reflects our “profound national
commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
New York Times Co. v. Sullivan, 376 U.S. 254, 270
(1964). “If there is a bedrock principle underlying the
First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Texas v. Johnson, 491 U.S. 397, 414 (1989).
Thus, adding to the concerns discussed in the preceding section that Mr. Ulbricht was sentenced for acts
that a jury did not find him responsible for, there is
strong reason for concern that he was punished for
the political views he held. All this, moreover, flows
from intrusion into his private web browsing history
without a prior showing of probable cause, as discussed in part I. Each of these concerns, and certainly
cumulatively, warrant attention from this Court.
E. Fact-Finding Should Be Entrusted To Juries, Not Judges.
In Duncan v. Louisiana, 391 U.S. 145, 156 (1968), this
Court unequivocally affirmed the crucial right to factfinding by jury:
Those who wrote our constitutions knew
from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies
and against judges too responsive to the
22
voice of higher authority.… Providing an accused with the right to be tried by a jury of
his peers gave him an inestimable safeguard against the corrupt or overzealous
prosecutor and against the compliant, biased, or eccentric judge.
In his time-honored work, Democracy in America,
Alexis De Tocqueville exalts the jury system as one of
the most critical political institutions for democratic
self-government. Jury service not only educates citizens about the legal system, it also inculcates a sense
of their duties as citizens and, optimally, improves
their deliberations as citizens. Thus, juries have an
important structural and historical role. Jury participation in the criminal justice process is, in itself, an
important civic institution. De Tocqueville said that
the jury
places the real direction of society in the
hands of the governed…and not the government…. He who punishes the criminal is
therefore the real master of society.... All
the sovereigns who have chosen to govern
by their own authority, and to direct society,
instead of obeying its direction, have destroyed or enfeebled the institution of the
jury.
Alexis De Tocqueville, Democracy in America, 361,
362 (The Century Co. 1898, 1st ed.).
Further, in The American Jury—a seminal book in
the study of juries’ influence in helping the public understand and appreciate the jury as an institution—
23
the authors’ overall observation was that “[w]hether
or not one comes to admire the jury system as much
as we have, it must rank as a daring effort in human
arrangement to work out a solution to the tensions
between law and equity and anarchy.” Harry Kalven,
Jr. and Hans Zeisel, The American Jury, 499 (1966).
When civics was taught in American schools, teachers
frequently screened the classic play and film 12 Angry
Men (Orion-Nova 1957) to illustrate the criminal justice system. The characters, identified by their juror
numbers, are often described as archetypes of human
qualities working together in search of truth and justice. The process of collective deliberation and voting
tempers individual bias. “[T]he wisdom and insights
of 12 Angry Men find support in empirical studies of
the contemporary jury. The value of diversity in promoting vigorous and fruitful discussion and the power
of jury deliberation in forcing deeper thinking are
both reinforced by social science studies of decision
making.” Valerie P. Hans, Deliberation and Dissent:
12 Angry Men Versus the Empirical Reality of Juries,
(2007), Cornell Law Faculty Publications, Paper 307
at 589.
In the play, jurors number Eleven and Nine have a
brief exchange on their collective and personal responsibility:
ELEVEN: …. We have a responsibility. This
is a remarkable thing about democracy.
That we are—what is the word?—ah, notified! That we are notified by mail to come
down to this place—and decide on the guilt
or innocence of a man; of a man we have not
24
known before. We have nothing to gain or
lose by our verdict. This is one of the reasons
why we are strong. We should not make it a
personal thing….
NINE: [slowly] Thank you very much.
ELEVEN: [slight surprise] Why do you
thank me?
NINE: We forget. It’s good to be reminded.
Reginald Rose, Twelve Angry Men, Act III, 44-45
(1955).
CONCLUSION
For the foregoing reasons, amici curiae respectfully
urge this Honorable Court to grant certiorari in this
matter and reverse the decision below.
25
Respectfully submitted,
Heidi Boghosian
Counsel of Record for Amici
A.J. MUSTE MEMORIAL
INSTITUTE, INC.
168 Canal Street, 6th Fl
New York, NY 10013
(917) 239-4999
Prof. Zachary Wolfe
The George Washington
University
2100 Foxhall Rd, NW
Ames Hall 218
Washington, DC 20007
zwolfe@gwu.edu
(202) 242-5130
February 5, 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.